In California these days, the federal government is single-handedly trying
to debunk two ancient myths which many well-intentioned Americans have
long taught their children. To wit:

1) If you don't like the law, all you need do is follow the proper procedures
to get a change before the appropriate legislative body or onto your state
ballot. The majority will then determine in an orderly fashion whether
your idea is a good one, and that will be that;

2) The reason the government licenses physicians is not to allow the
political control of medical science -- say, barring physicians from even
discussing useful treatments -- but simply to guarantee consumers that
would-be physicians have met certain minimal and well-established standards
of training and conduct. These licensing schemes, for instance, would
never be used to allow politicians or bureaucrats to blackmail
physicians into practicing medicine the way the regulators see
fit, threatening to put our doctors out of business for, say, merely recommending
natural herbs which compete with the products of politically well-connected
pharmaceutical firms.

What has now happened in California is that the voters went to the polls
a few years back and overwhelmingly approved the medical use of marijuana,
in cases where a physician recommends that smoking that medically active
herb might be of use to a specific patient -- say, a glaucoma sufferer,
or an AIDS patient like author Peter McWilliams, who died in California
last month when he choked on his own vomit, unable to hold down his chemotherapy
drugs after a federal judge ordered him to stop following just such a
doctor's recommendation.

In passing the Compassionate Use Act, Californians didn't even require
that a doctor write a formal "prescription" for marijuana --
sidestepping the problem of how to "fill" such a prescription
when federal law would still frown on a licensed pharmacy stocking the
plant. Only a less formal "recommendation" is needed.

But, ignoring the limitations placed on their power by the 9th and 10th
Amendments -- which restrict the federal government to meddling in only
those affairs itemized in the U.S. Constitution (a document which one
searches in vain for any reference to restrictions on medicine or medical
practice ) -- federal authorities aren't having any of it.

Answering an ACLU lawsuit which seeks to block the practice, Justice
Department lawyers are now arguing in U.S. District Court in San Francisco
that Washington has the right to punish, put out of business, and even
arrest California doctors who recommend marijuana use for specific patients,
just as was envisioned by California voters when they went to the polls
in 1996.

The federals now threaten to take away the doctors' licenses to write
prescriptions for "controlled" substances -- effectively putting
them out of business or forcing them to leave the country (as was the
outcome of a similar regulatory coup against Las Vegas' own Dr. Dietrich
Stoermer, even after the good doctor was unanimously acquitted of "writing
too many painkiller prescriptions" in a public trial in 1993.) And
that further violates the doctors' free speech rights under the First
Amendment, the ACLU argues.

McCaffrey

(Not content to stop there, Drug Czar Barry McCaffrey has also threatened
to bar any such wayward physician from participation in the Medicare and
Medicaid programs -- a bit like threatening to throw Br'er Rabbit in the
briar patch -- and even to bring criminal charges.)

The government action here hinges on a negative, of course -- the fact
that the federal Food and Drug Administration has never "approved"
marijuana for medical use. But pharmaceutical firms now spend millions
of dollars to usher each new nostrum through the FDA approval process
-- and none will bother to fund clinical trials for marijuana, since there'd
be no way to patent and thus make back their investment on what is, after
all, a common roadside weed.

Blue-ribbon White House panels have been recommending the de-criminalization
of marijuana since the days of Richard Nixon. The herb was perfectly legal
and in medical use from the middle ages up until the 1930s, when the current
federal prohibition resulted from a combination of the yellow journalism
of William Randolph Hearst (who ordered his columnists to stop calling
the plant by its well-established name, Indian hemp, and instead dub it
"Marijuana," the better to link it with racist fears of the
growing Mexican minority) and the need to find new work for recently-unemployed
(alcohol) Prohibition agents.

In recent years, majorities of voters in Alaska, Arizona, California,
Hawaii, Maine, Nevada, Oregon, and Washington state have ruled that doctors
-- not police or politicians -- are indeed the right folks to decide when
marijuana might be medically useful for some patients. It's the federal
government which is motivated here not by medical science or compassion
for the sick, but by sheer politics.

The founders intended ours to be a pluralistic union, in which voters
could always "vote with their feet" -- just as religious nonconformists
used to flee Massachusetts for Roger Williams' more tolerant Providence
Plantation. Thomas Jefferson himself warned that we would find ourselves
on the verge of Bonapartist tyranny should ever the 13 (now 50) states
be reduced to mere administrative subdivisions of the central government,
"like the 'departments' of France." And isn't that precisely
what Gen. McCaffrey and prosecutor Lobue now have in mind?

The Justice Department's position here is wrong on every count, betraying
a willingness to sacrifice even the lives of the sick for the sake of
bureaucratic empire-building and political expediency.